Whether preferring a Native person over a non-Native person is an unlawful use of race was settled over 40 years ago in Morton v. Mancari when the United States Supreme Court declared that choosing a Native person in hiring was not based on race but instead based on the candidates connection to their Tribal Nation.  The Morton precedent is being challenged, not in employment cases, but in child welfare cases under the Indian Child Welfare Act.  On August 9, 2019 the 5th Circuit Court of Appeals, in Brakeen v. Bernhardt, reversed a lower court ruling challenging Morton.  Chalk that victory up for the legality of preference.  Whether that victory will be temporary or not is dependent on whether the case is appealed and if appealed, whether the United States Supreme Court accepts the case and reevaluates its 40 plus year old precedent.

In the meantime, tribal employers should review their preference practices to ensure the practices are clear and reflect the tribal employer’s unique history and values.

The use of preference in tribal employment is a wide spread practice which incorporates many policy variations.  There are at least three elements to a strong preference policy.  The first element addresses what category or categories of people are preferred, the second element directs when preference is used and the third element defines scope.

Element 1-Lists

Preference policies can simply articulate Native preference wherein the employer prefers a Native applicant over a non-Native applicant.  Alternatively, the preference policy can elevate members of the employer’s tribe in front of other Natives as a preference.  Preference for members of the employer’s tribe is called tribe-specific preference.  Some preference policies provide preference to veterans, spouses and parents, descendants and others.  The categories in the preference list should reflect the specific values and goals of the tribe defining the policy.  The example below is just one example of many lists used by tribal employers.

1.Applicants or employees who are enrolled ABC tribal members;

2.Applicants or employees who are the spouses of ABC tribal members;

3.Applicants or employees who are enrolled members of other Indian tribes;

4.All other applicants or employees.

Element 2-Tests

There are at least three alternatives for the tests used by tribes in executing on preference.  Below there are a couple sample policies which incorporate these tests.  The first example describes the break-the-tie test, the second example describes the minimum qualifications test and the third example is a hybrid of mandatory preference and minimum qualification.

Break the Tie test

Preference in hiring, job transfers, promotions, choice of shifts and any reductions in the labor force is given in the order set forth above in the list when applicants or employees are equally able to perform the duties and responsibilities.

Minimum Qualifications test

Preference in hiring, job transfers, promotions, choice of shifts and any reductions in the labor force is given in the order set forth above when applicants or employees meet the minimum qualifications set forth in the job description.

Or…

Irrespective of the qualifications of any non-Navajo applicant or candidate, any Navajo applicant or candidate who demonstrates the necessary qualifications for an employment position shall be selected.

Hybrid test

Preference in hiring, job transfers, promotions, choice of shifts and any reductions in the labor force is given to ABC tribal members only if the open position is a supervisor, manager, director or administrator.  For non-supervisory positions, preference in hiring, job transfers, promotions, choice of shifts and any reductions in the labor force is given in the order set forth above when applicants or employees meet the minimum qualification of the position.

Oftentimes preference policies set forth specific requirements for employees which seek to utilize the policy.  To claim preference an enrolled tribal member must be able to provide verifiable documentation.  This can be in the form of a document bearing either:

1.The enrollment number issued by the Bureau of Indian Affairs, or

2.The enrollment number issued by the Tribal Government.

In the event that no documentation bearing the enrollment number is available, the applicant or employee must provide a notarized letter or resolution from the Government of the enrolled tribal member’s tribe attesting that the individual is a member of their tribe.  This requirement must be complied with before an applicant or employee may receive preference in the human resources process.  Providing proof of preference is the responsibility of the tribal member and must be received prior to the use of such preference.

Element 3-Scope

Is preference limited to hiring or expanded to promotions, training, reduction in force and other aspects of employment?  That question should be answered in the policy and the policy should reflect the tribal employer’s objectives.

A Couple More Considerations

There is a myth which asserts that if a tribal employer is the recipient of federal funds, the tribal employer may exercise Native preference but not tribe specific preference. The myth can be true and false.  The Indian Self Determination Act (ISDA) and the Native American Housing Assistance and Self-Determination Act (NAHASDA) appear to limit preference to Native preference only (no tribe-specific preference) but consider the impact of ISDA’s 5307(c) which states that when ISDA funds (638 funds) are devoted to a single tribe that tribe’s laws shall define the preference which applies even when there are federal funds.  This provision is yet another reason to adopt these rules as tribal law.

Public Training Opportunity

Drafting Employment Codes & Handbooks

October 10 & 11 Gila River’s Vee Quiva Hotel Casino Laveen, AZ

This session addresses the best practices for creating a system of laws, policies and procedures which best serve the tribal employer and employees. The session provides respectful suggestions for defining the terms and conditions of employment through an employment code and employee handbook.  A tribal employment code and comprehensive policies are included in the materials.

Law Office of Richard G. McGee, LLC
richard@richardmcgeelaw.com
612-812-9673

Discounted rooms are still available.  Please call 520-796-4900 and mention Drafting Employment Codes & Handbooks to get the discounted room rate.